BPC Hotels Ltd & Ors v Brooke North (A Firm)

For limitation purposes, deliberate concealment requires more than negligent advice. Under section 32(2) of the Limitation Act 1980, the claimant must show a deliberate breach of duty, or deliberate wrongdoing, in circumstances where discovery was unlikely for some time. Serious allegations require cogent evidence, although the civil standard remains the balance of probabilities.

On summary judgment, the court must distinguish a realistic claim from fanciful speculation. It may examine documentary evidence and reject assertions lacking substance, but must avoid conducting a mini-trial. Where the evidence provides no realistic prospect of proving deliberate concealment, the limitation issue may be determined summarily.

The claimants brought professional-negligence claims against their former solicitors concerning advice given between 2000 and 2003. The claims were issued in November 2014 and were prima facie statute-barred. The claimants relied on section 32 of the Limitation Act 1980, alleging that the defendant’s partners had deliberately removed documents and deliberately breached duties so as to conceal the facts relevant to the claims.

The defendant applied for summary judgment. The central issue was whether the allegations of deliberate concealment had a realistic prospect of success sufficient to postpone limitation.

1. Summary judgment granted. The new claims were hopeless and summary judgment was entered for the defendant.
2. Section 32(2) of the Limitation Act 1980, as explained in Cave v Robinson Jarvis & Rolf [2003] 1 AC 384, applies where the defendant deliberately conceals a breach after becoming aware of it, or deliberately commits a breach in circumstances where it is unlikely to be discovered for some time. Mere negligence, without awareness of the error or failure to take proper care, is insufficient.
3. The allegations required cogent evidence because they alleged that two solicitors had conspired to remove documents and conceal their knowledge. The civil standard remained the balance of probabilities.
4. The approach in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) was applied. The court had to ask whether the claim was realistic rather than fanciful, avoid a mini-trial, consider reasonably available trial evidence, and determine a short legal or evidential point summarily where the material before it was sufficient.
5. The contemporaneous memorandum, the surviving correspondence, and the attendance note of the advice given in July 2003 provided no realistic basis for inferring deliberate concealment. The evidence suggested that relevant correspondence had not been consulted, rather than that it had been removed. The possibility of cross-examination did not create a realistic prospect of success where no further evidence had been identified.
6. The claimants’ reliance on the earlier Court of Appeal observation about issuing protective fresh proceedings did not alter the limitation analysis.

• Court of Appeal: The judgment describes an earlier appeal concerning amendments to the existing proceedings. The appeal was allowed on 5 December 2013, and the new claims were treated as distinct claims.
• High Court (Technology and Construction Court): The defendant’s application for summary judgment in the new proceedings was granted.